2015 (4) TMI 687 - HC - Customs

Pilferage of 10 kg Heroin from malkhana of Narcotic Control Bureau - Sentence awarded by the trial court under Sections 21(C), Section 29 and Section 32 of the NDPS Act - Reliance on retracted statement - Admission by the co-accused - Held that - An inculpatory statement, which is in the nature of an admission, can be legitimately retracted but such a retraction can only be accepted if it is made expeditiously namely at the time when the accused is produced before the Magistrate or soon thereafter and then also by putting forth credible facts that would indicate, but would not prove force/coercion. The ultimate principle that governs acceptance of a retraction and a consequent discarding of such a statement, is the facts disclosed in a retraction to primafacie suggest coercion, force or manipulation as opposed to absolute proof of such facts. The facts regarding coercion, force and manipulation must be specific and must broadly, if not specifically set out the acts that constitute coercion and force for otherwise it would be near impossible for a prosecution in such cases to succeed and render meaningless provisions in various statues relating to economic crimes and smuggling of drugs. The facts of the present case do not enable us to accept the retraction as not only was it not proffered when Naseeb Chand was produced before the Magistrate for the first time but the application for retraction is devoid of even rudimentary particulars of any acts that may constitute force or coercion. The mere fact that Naseeb Chand was in the NCB office, is irrelevant as Naseeb Chand is not an ordinary individual. Naseeb Chand is an informer and has been in jail before and, therefore, would not capitulate easily. We, therefore, affirm the opinion recorded by the trial Court that the retraction by Naseeb Chand does not detract from the admission made in his statement recorded under Section 67 of the NDPS Act. At this stage, it would be appropriate to point out that even a retracted statement may, circumstances so permitting, form the basis of a conviction. The trial Court has duly considered various judgments of the Hon'ble Supreme Court on the point of retraction and the consideration of a retracted statement and only thereafter proceeded to rely upon the statement made by Naseeb Chand. We find no reason to differ with the opinion recorded by the trial Court that statement made by Naseeb Chand is sufficient to prove his culpability. Section 30 of the Evidence Act postulates that where more persons than one are tried jointly for the same offence and one such person makes a confession affecting himself and the other accused, a Court may take into consideration such a confession not only against the person making the confession but also against others who have been implicated. The illustration appended below Section 30 of the Evidence Act, makes it amply clear that an admission made by a co-accused being jointly tried against another may be taken into consideration not only against the person making such a confession but also against the other accused being tried with such person. As we have accepted the truth and the evidentiary value of the statement made by Naseeb Chand, have no hesitation in holding that the admission made by Naseeb Chand can and may be read against Saji Mohan to raise an inference of culpability. A perusal of the aforesaid table reveals a marked difference between the contents of the samples as originally tested and during the process of retesting. The fact that in certain cases the contents of diacetyl morphine has increased rather than decreased can be attributed to failure to make a homogeneous mixture but the overall facts that emerge from retesting definitely points to a fact that there was large scale pilferage of narcotics stored in the NCB, Chandigarh. The aforesaid evidence, in our considered opinion, when read alongwith the statements made by the experts who conducted the test further corroborate the statements Ex.P9 and Ex.PW18/H made by Naseeb Chand and Naveen Kumar respectively, and conclusively establishes the guilt of the appellants. As regards Criminal Revisions filed by Virat Dutt Chaudahry and Pushpdeep Singh, we have perused the impugned order as well as submissions made by counsel for the petitioners and as we have already held that a prima-facie perusal of their statements reveals that they may have deposed falsely with respect to the nature of the unclaimed seizure on the intervening night of 27/28.08.2008 and have also made an observation that the facts actually warranted their prosecution as accused alongwith the appellants, find no merit in the revisions - Decided against assessee. The case, in hand, exposes the murky underbelly of government agencies set up to stamp out the menace of narcotics, where the lines between the smuggler and the law enforcer are so blurred as to make it difficult to distinguish one from the other. The shadowy world of informers, spies, drug traffickers, officers of the Customs Department, the Narcotic Bureau are so enmeshed in a web of deceit and greed, as to be indistinguishable. A sad commentary on the functioning of these agencies. The case, in hand, is a glaring example of what fortifies our opinions. - appellants, apart from doubting the legality of a statement, under Section 67 of the NDPS Act, have criticised the statements by alleging that the notice served upon Naseeb Chand does not contain his address or the name of the officer who effected service and it has not been explained as to how notice dated 26.03.2009, issued from Chandigarh was served upon Naseeb Chand at Jammu and he appeared before NCB Chandigarh on 27.03.2009 after travelling a distance of more than 400 kms. Apart from this argument, counsel for the appellants have also submitted that as the statements stood retracted they could not form the basis of an opinion of culpability vis-a-vis any of the appellants. The statement by Naveen Kumar has drawn similar criticism and in addition it is urged that as Naveen Kumar has alleged to have stated that in November, 2008 Saji Mohan and Balwinder Kumar had in his presence taken out several lots of heroin and on the directions of Saji Mohan he and Balwinder Kumar mixed slaked lime in the lots and made another big lot which was handed over to Saji Mohan for showing a big seizure at Chandigarh but a perusal of the chemical analysis reports reveals that the samples were not analysed for presence of slaked lime, thereby in essence, nullifying the statement Ex.PW1/H made by Naveen Kumar under Section 67 of the NDPS Act.

Summary

Issues Involved:
1. Legality and admissibility of statements recorded under Section 67 of the NDPS Act.
2. Allegations of pilferage of heroin from the malkhana at NCB, Chandigarh.
3. Validity of retracted statements and their evidentiary value.
4. Involvement of customs officers in the alleged pilferage and false seizure.

Detailed Analysis:

1. Legality and Admissibility of Statements Recorded under Section 67 of the NDPS Act:
The court examined whether statements recorded under Section 67 of the NDPS Act could be used as evidence. It was argued that such statements should not be considered as they were not recorded during an inquiry but rather during an investigation. The court, however, held that statements under Section 67 of the NDPS Act, if inculpatory, could be read as admissions under Section 17 of the Evidence Act, 1872, provided they were not recorded by a police officer during an investigation. The court concluded that the statements made by Naseeb Chand and Naveen Kumar under Section 67 of the NDPS Act were admissible as they were recorded during an inquiry and not during an investigation.

2. Allegations of Pilferage of Heroin from the Malkhana at NCB, Chandigarh:
The prosecution alleged that Saji Mohan and Balwinder Kumar pilfered 10 kgs of heroin from the malkhana at NCB, Chandigarh, replaced it with slaked lime, and handed it over to Naseeb Chand for sale. The court found that the statements by Naseeb Chand (Ex.P9) and Naveen Kumar (Ex.PW18/H) provided sufficient evidence of the pilferage. The court noted that Naseeb Chand's statement detailed the conspiracy and the transfer of heroin, while Naveen Kumar's statement described the modus operandi of mixing slaked lime with heroin. The court also relied on chemical analysis reports showing variations in the diacetyl morphine content, which corroborated the pilferage allegations.

3. Validity of Retracted Statements and Their Evidentiary Value:
The court addressed the issue of retracted statements, particularly focusing on the timing and specifics of the retraction. It was argued that the retractions by Naseeb Chand and Naveen Kumar were not credible as they were delayed and lacked specific details of coercion or force. The court held that retractions must be prompt and specific to be considered valid. Since Naseeb Chand retracted his statement two months later without detailing the alleged coercion, the court found the retraction unconvincing. The court affirmed that even retracted statements could be relied upon if corroborated by other evidence, which was the case here.

4. Involvement of Customs Officers in the Alleged Pilferage and False Seizure:
The court examined the role of customs officers Virat Dutt Chaudhary and Pushpdeep Singh, who were alleged to have falsely shown the recovery of 10 kgs of heroin as an unclaimed seizure. The court noted that Naseeb Chand's statement linked the heroin handed over by Saji Mohan to the unclaimed seizure by the customs officers. The court found that the customs officers' statements were inconsistent and indicative of falsehoods, leading to the initiation of proceedings against them under Sections 193 and 340 of the Cr.P.C. The court dismissed the revisions filed by the customs officers, affirming their involvement in the false seizure.

Conclusion:
The court upheld the convictions and sentences of the appellants based on the admissible statements under Section 67 of the NDPS Act, corroborated by chemical analysis reports and other evidence. The court dismissed the appeals and revisions, affirming the trial court's findings and the initiation of proceedings against the customs officers.